Can The State Retry You if You Win Your Direct Criminal Appeal?
In Louisiana, as in most states, you have the right to appeal a guilty verdict entered against you in a criminal case. But the question then becomes, if you win your appeal, and the appellate court finds that the lower trial court was incorrect in convicting you, can the state then retry you again, for the same offense?
Our Louisiana criminal defense attorney explains more on this below.
Double Jeopardy
This isn’t an easy question to answer because of constitutional protections against double jeopardy. This means that the state cannot try you more than once for the same offense. If the state loses, and the jury says you are not guilty, and you’re free, that’s it. They can’t try the case against you again (however, the state and federal government can both try you for the same things, if your crime warrants both federal and state charges).
The state or government gets one “bite of the apple,” as the saying goes.
Winning Your Appeal
So, under double jeopardy, it would seem that if you won your criminal appeal, the state would be unable to ever try you again for the same crime. But this isn’t completely true.
There are times when, if you win your appeal, the state can never retry you because of double jeopardy. This is based on the reasons why the trial court’s decision was overturned or reversed by the appellate court.
If the appellate court’s reversal was based on insufficient evidence—that is, the state didn’t have enough evidence to properly convict you at trial—the state does not get a second chance; your appeal reversing the trial court’s decision is final, and the conviction is forever overturned. If the reversal was based on something that was more procedural, or an issue that didn’t have to do with what was actually presented at trial, then the state can argue that they are allowed to retry you.
Your attorney will discuss with you, in your case, the basis for your Louisiana criminal appeal, and the likelihood that it may or may not be something the state could retry you for if you do win your appeal.
The state can also not retry you if you were charged with multiple offenses, but were convicted of the lower offense. In that case, if the lower offense conviction were overturned, the state couldn’t go back and retry you on the higher offense. So, if you were charged with 1st and 2nd degree murder, and convicted of only 2nd degree murder, and that conviction was overturned, the state could not go back and retry you for 1st degree murder.
Will the State Retry You?
Remember that just because the state may be able to retry you in certain circumstances following a successful appeal of a conviction, it doesn’t mean that it will.
Sometimes, the state just gives up and assumes that it tried its best. Other times, faced with a new trial, the state may approach a Defendant with a favorable plea deal to avoid a brand new, second trial. In more high-profile cases, they may opt to try again if they are legally allowed to do so.
The good news is that if the state can, and does retry you, and they win on the second try, you are also allowed to appeal that second trial and conviction, assuming there are grounds to do so.
Contact the Law Offices of Philip B. Adams today. We are top-rated, relentless, and aggressive Louisiana criminal defense lawyers. Complete our "Contact Us" page here. You may significantly benefit by having an attorney with legal competence and experience assist you with your Louisiana criminal case. We have offices in Shreveport and handle criminal defense cases throughout Louisiana.